Oberti and the Law

The word "inclusion" is not found anywhere in federal
special-education law.

"Least restrictive environment" is the magic phrase used in the
Individuals with Disabilities Education Act, the landmark 1975 law that
requires schools that accept federal money to provide children with
disabilities a "free, appropriate public education." The law also
requires schools to educate children with disabilities to the "maximum
extent appropriate" alongside their nondisabled peers.

The combination of these key phrases has led to cases like those of
Rafael Oberti, which legal experts say is one of about half a dozen
inclusion cases that have carved out new legal ground or garnered
national attention. Though some inclusion cases have been appealed to
the U.S. Supreme Court, the justices have refused to consider any of
them.

While Oberti v. Board of Education of the Borough of Clementon
School District did not create any new legal standard by which
inclusion cases should be judged, it did clarify some issues, many
legal observers say. Paramount among them is that districts generally
carry the burden to prove why a student should not be included in the
regular classroom.

"It's a steep and slippery slope," says Perry Zirkel, a professor of
education and law at Lehigh University in Bethlehem, Pa. "The words of
the law are tilted heavily toward placing students in the regular
classroom for a major portion of the day, but it's slippery because the
language--'maximum extent appropriate'--is imprecise."

But Oberti was "the right case at the right time" to draw heavy
media attention, Zirkel says. At least on paper, Rafael sounded like
the student schools fear most--a disruptive and difficult child. Adding
to the hype was another high-profile inclusion case unfolding thousands
of miles away in Sacramento, Calif., where school officials spent
roughly $1 million to fight--unsuccessfully--the parents of Rachel
Holland, another child with Down syndrome. Frank Laski, the lawyer who
represented the Obertis in their legal battle, says the timing of the
cases on both coasts made for more intense media scrutiny than either
one would have received alone.

"Oberti stands out as a case educators look at and say, 'My God,
this kid was pretty aggressive. What do we have to endure before we can
prove it's not appropriate?"' says Melinda Maloney, a lawyer and an
associate publisher at LRP Publications, a Horsham, Pa.-based company
that produces publications related to disabilities. "I think schools
see this case and know the handwriting is on the wall. You can't assume
any kid who creates a problem for a regular-education teacher is going
to be out."

Oberti clearly has left its mark, besides generating a $214,000
legal bill for the Clementon school district. Since 1993, when the U.S.
Court of Appeals for the 3rd Circuit ruled for the Obertis, the case
has been cited in at least 20 court cases across the country.

Both the federal courts ruled that the Clementon school district
didn't do enough to make Rafael's time in the regular classroom work.
But it is telling that the appeals court didn't echo the district
court's characterization of inclusion being a "right," says Dixie Snow
Huefner, an associate professor of special education at the University
of Utah.

"I think they couldn't find the 'right' embedded in the law,"
Huefner says of the appellate judges. "They found a 'preference."'

The appeals court also emphasized that the specifics of Rafael's
program should be left to the child-study team, New Jersey's lingo for
the team of experts who make up a student's individualized-education
plan.

The Civil-Rights Link

The Oberti ruling, like many others, drew in part from standards set
forth in Daniel R.R. v. State Board of Education, a Texas case decided
by the 5th Circuit in 1989 in which the parents lost their inclusion
battle.

In inclusion cases, the courts have generally looked at:

Whether a school has made serious efforts to try placing a
student in the regular classroom with the needed aids and
supports.

What the educational and social benefits for the child are in a
regular-education classroom or a more segregated placement.

Whether including the child in the regular classroom is likely to
"significantly impair" the learning of the other students.

What it costs to include a child.

Some courts have criticized the Oberti ruling for declaring a
"presumption" in favor of educating a child in his neighborhood school.
In recent cases, some parents fighting to have their children educated
in the school down the block--rather than in mainstreamed settings in
another school building--have lost.

The next generation of inclusion cases, some experts predict, will
not be of the Oberti ilk. It is not coincidental that major cases like
Oberti and Holland have involved younger children with Down syndrome,
who tend to be relatively easily included in regular classrooms,
experts say. Expect more cases with older children and children with
more complex disabilities such as emotional or behavioral disorders
(where parents already have started to lose inclusion cases). And, on
the flip side, expect to see more cases with parents fed up with the
poor quality of their public schools fighting to move their children
out of those schools and into private schools for disabled children--at
taxpayer expense.

Regardless of where educators stand philosophically on inclusion,
many disability-rights advocates have made the link between inclusion
and racial desegregation. And they warn that if schools don't move fast
enough to better integrate their disabled children, the courts may step
in to do the job for them.

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